Dry Hunger Strike in Mental Hospital

Media release: March 12, 2018

Saeed Dezfouli feels betrayed by the Mental Health Review Tribunal. “I am left with no other alternative but to commence a dry hunger strike (nil by mouth) to protest the inhumane behavior of the NSW Mental Health System” said Mr Dezfouli. He is currently on his 6^th day of the strike.

“In April 2016 the Tribunal said it wanted to find a quick resolution to getting Saeed back home to Iran. However at a formal hearing on the 23^rd of February 2018, the President of the Tribunal Richard Cogswell set new conditions for an order for Saeed’s repatriation to Iran. He insisted that on arrival Iranian authorities must apprehend Saeed and incarcerate him in a secure mental health facility. However the Iranian Embassy said in writing December 20, 2017 to Mr Cogswell that it would be ‘unlawful, unfair and immoral’ for the Iranian government to deprive Saeed from his rights to freedom in Iran. Sharia Law entitles him to a fair go it said. And he has family and a psychiatrist to assist him voluntarily if he needs that”

“Saeed also wants to expose the institutionalised ‘sit down, put up and shut up’ policy occurring in the hospital in regards to forced medication. In contradiction to providing the “best possible care and treatment” as required under s 68 of the Mental Health Act 2007, the hospital’s forced medication has caused him to develop diabetes and heart disease. During his ‘treatment’ Saeed has been forcibly medicated trialling nine different medications, often being restrained by eight nurses to be injected. Currently he is refusing all of his cardiac medications for his heart disease, which the clinicians will cause his death” 

Mr Saeed Dezfouli used to be a dual Iranian and Australian citizen, but in August 2017 he successfully renounced his Australian citizenship to repatriate to Iran. This was done in protest against his indefinite detainment in the inhumane NSW mental health system since 2002. If Saeed were tried through the criminal justice system he would have served three and a half years in prison, however he has served over 16 years. Despite ongoing reviews with the Mental Health Review Tribunal, Saeed is still being held in the maximum-security area at Long Bay Forensic Hospital. Here his legal, civil and human rights have been abused to the point where Saeed has expressed that ‘death is better than what I am experiencing’” 

“If I die in here, I hope that just like the death of Miriam Merton in Lismore Base Mental Hospital in June 2014, my death also results in reforming NSW’s dysfunctional and corrupt mental health system and tribunal. I hope no other human being or forensic patient ever has to experience what I have observed and experienced” said Mr Dezfouli.

For comment:  Brett Collins 0438 705 003

ACT Computers in Cells Report The Community Justice Coalition (CJC) resolved to arrange a visit to the Alexander Maconochie Centre (AMC), Australian Capital Territory. 

This visit intended to extend the work into the Computers in Cells program. The insights of the ACT experience with in-cell technology would also promote further discussions in other jurisdictions. That experience of internet-connected computers in cells indicates that there are many key benefits including communication with families, access to education and information. It also reduces boredom.

Recidivism within the ACT has been on the decline, while in NSW and Australia in general it has been increasing. Only 39% of ACT prisoners return to prison within 2 years, compared to NSW at 50.7% and the national average of 44.3%. Education participation in the ACT prison stands at 76.3%, which is more than double the national rate of 31.6%.

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Justice Action proposes the formation of a consumer-run Housing Cooperative drawing upon the overseas and local experience of successful community-controlled housing.

Justice Action supports Callan Park's development as a privileged living area to accommodate mental health consumers, demonstrating a positive model of recovery with social support. It wants consumers to utilise the area for independent living now, and as a centre created for the benefit of generations to come. Justice Action supports the application by Breakfree Services and partners, to utilise a number of buildings on the site to establish a housing cooperative for mental health consumers.

Callan Park is an area that was brought by the government in 1887 and was dedicated to supporting people with mental health related disabilities. The Master Plan proposes creating supported accommodation for 83 mental health consumers.

Some NGO organisations oppose any mental health consumers living in Callan Park on the basis that it would form a stigmatised ghetto. Instead, they want to build a conference centre.

To exclude mental health consumers from living in Callan park would be a radical move after its dedication to them in 1887. As organisations and individuals, we need to consider carefully our reasons to do so whilst using the remaining area for drug and alcohol rehabilitation accommodation and mental health administration for the NGO sector.

Mental health consumers are vulnerable, yet central to the whole justification for mental health resources. It is hard for them to defend the Master Plan recommendation for homes for 83 consumers in Callan Park in this lobbying process – the point made in the OUR PICK Report.

Consumers have real problems with accommodation. We constantly have people who are refused public housing who go to hospital after being homeless and offered space in our own homes. The increasing homelessness is expressed on the City of Sydney website so the opportunity for a housing cooperative for consumers if very significant.

Our people are crying out for housing. The Report of the 2007 Forum with over forty consumers at the Rozelle Conference Centre, lists accommodation: "lack of choice, safety and support" as of vital importance. It is consistently highlighted.

Consumers need housing 

Adequate, affordable and secure accommodation has been identified in both the HREOC "Burdekin Report" 1992 and the "Not For Service Report" 2005 as being a critical factor in determining the recovery of people with a mental illness in the community.

The Canadian Senate Report "In from the Margin: A Call to Action on Poverty, Housing and Homelessness" 2009 highlighted that "the cost of land can be prohibitive to any organisation seeking to build affordable housing, for purchase or rent".

Burdekin stated that: procedures dealing with the discharge and coordination of the community treatment and care for people with a mental illness are generally inadequate. Mental health consumers are being discriminatorily excluded from government housing programs.

As a consequence, homeless shelters, refuges and boarding houses now function as primary sources of 'accommodation' for people with mental illnesses, with these shelters generally lacking the support needed for effective rehabilitation. The current housing problem for mental health consumers requires a sustainable, affordable solution in which consumers are given access to intensively supported accommodation in the community.

The same point was raised in the Consumer Forum facilitated by the Mental Health Services Conference 2000 (TheMHS) in Issue Four in the Twenty Three Big Issues. This means that people are often discharged from hospital and forced to find accommodation outside their established security network, leading to further isolation and alienation.

Why a housing cooperative?

"Co-operative Housing is rental housing for people on low to moderate incomes where members select tenants, manage and maintain the housing. It is long term, secure and affordable. The government provides funds to build or buy dwellings and the co-op self-manages, making it a cost effective alternative to other forms of social housing. Rents are used to cover running costs, upgrades, administration and training." – Association to Resource Co-Operative Housing. http://www.arch.asn.au/coop.

Supported community living is a key feature of housing cooperatives. Community housing, such as cooperatives, are differentiated from public housing in that they follow a more 'community development' approach, focusing on empowering participants, strengthening communities and reintegrating people back into the mainstream. Additionally, cooperative housing, as defined by the Association to Resource Co-operative Housing, provides people with the ability to rent housing at a reduced price , and thus offers an affordable and secure living situation for disadvantaged members of society.

Models of successful housing cooperatives

Cooperative housing models tend to provide geographically separate and independent housing options for members of a particular community or group. Residents are required to pay rent, and are typically given the option of participating in cooperative activities. Additionally, many cooperatives that are aimed at people with a disadvantage or disability provide ongoing support to residents both in terms of a support network and in terms of access to information, medical care or relevant services.

The following are just some of many examples.

L'Abri en Ville in Quebec. L'Abri en Ville provides safe, affordable housing for people with a mental illness by placing three compatibility-matched residents together in an apartment. The structure of the living arrangements itself promote social cohesion and integration, and the fact that each resident is responsible for an allocation of household chores as well as rent additionally promotes individual capacity building and rehabilitation. L'Abri en Ville also eases the reintegration of mental health consumers through providing a strong support network in the form of volunteers assigned to assist each apartment, as well as having a staff coordinator meet weekly with the residents of each apartment.

Metro Non-Profit Housing in Canada supports 18 bachelor apartments, each with a separate kitchen and bathroom that it makes available to the homeless or those especially vulnerable to homelessness. The Association however also provides an ongoing support network to residents through their Housing Centre, which provides a number of services including information on housing and benefits issues, supportive conselling from two support centre workers, and access to medical and psychiatric care from visiting trained medical staff. The success of this organisation has been demonstrated in the description of the development of a 'family culture' amongst residents, providing a valuable support network for the disadvantaged and consequently building individual capacity and social cohesion.

Australian housing cooperatives include the Northern Suburbs Housing Cooperative, which provides long-term, secure, rental accommodation to eligible people over 55 years of age. In addition to providing affordable housing for the vulnerable, this cooperative also focuses on providing a supportive community network that provides opportunities for tenants to be involved in Co-ops management functions as well as assisting tenants to gain access to other community resources and services.

Cooperatives may also be aimed at ethnic groups, such as the Tongan Housing Cooperative called 'Hope, Faith and Love' based in Sydney. Given the difficulty of finding affordable housing in Sydney, as well as the desire of many migrants to remain close to members of their community, many Tongans chose the cooperative housing model as it was an affordable option that provided long-term security and allowed people to live within a supportive environment.

Trieste Model of Mental Health Services

Introduction

The Trieste-style community-based mental health model is the foundation upon which the future Callan Park Master Plan is based, and its obvious success should not be overlooked. It is a social response to mental illness, with integrated housing, employment, treatment and social services. This has led to a dramatic decrease in the occurrence of both forensic involuntary and homeless consumers.

The philosophy underlying the Trieste mental health system is that people must have the opportunity to be both patients, as well as individuals with complex lives and needs. The social capital of relational resources of individuals, measured by trust, reciprocity, the use of the power of negotiation, political awareness and civic participation, are positively correlated with health conditions. The community must openly take responsibility for its own community mental health. Rather than being merely a goal, work functions as an instrument for recovery, emancipation and defeating stigmatisation, consequently providing a very important path out of the psychiatric 'circuit'.

Prior to the mental health reforms during the 1970's, Italy ran a substandard psychiatric system where patients were routinely subjected to concentration camp conditions and neglect was common. The real problem faced by mental health patients was not their mental illness, but rather, the way society treated and viewed them. In particular, the essential substitution of the illness or the patient and the subsequent incarceration of the mental health patient. Dr Franco Basaglia led reform and de-institutionalisation in the early 1970s with the mental health hospital unlocking its doors in 1974, allowing patients to come and go freely. Currently, 94% of mental health budget is spent on community-based services. Health and social services are well integrated, employment rates are high, as are the functioning levels of those affected by mental illness. Few individuals with mental illnesses are trapped within the criminal justice system.

Mental Health Services

In Trieste, accommodation is provided in the form of therapeutic /rehabilitation residences for people with a chronic mental illness, and/or people with mental illness who lack a strong support network of family and friends. These are 10 houses or apartments, which provide places for a total of 70 guests, with 6 of them (43 guests) located within the grounds of the old San Giovanni psychiatric hospital. Even after an individual has entered the housing area, they maintain contact with their family, friends and home community in order to receive all necessary support. With the well-respected international World Health Organisation (WHO) regarding Trieste as a celebrated example of successful mental health care, the Trieste model appears to have huge adaptive potential. Mental health services in Trieste are mainly delivered through four community-based Mental Health Centres (MHC) serving a catchment area of approximately 60,000 each. Predominantly provide short-term 'guest' accommodation for approximately 8 people. MHCs are drop in centres staffed by psychiatrists, psychologists, social workers and psychiatric nurses that operate 24/7 and provide both formal and informal engagement between staff, mental health patients, their families and importantly, the outside world. They are in spacious, well-designed buildings with ample multi-purpose indoor and outdoor spaces. A mental health worker assesses an unwell person very soon after they present at the centre. No one is turned away, yet it is unusual for all beds to be occupied.

There is also a four-bed university based clinic, 12 group homes with a total of 72 beds staffed at a range of levels according to need, and 8 emergency beds in the psychiatric unit. Importantly, there are no physical, structural or service restraints, even for individuals who are under compulsory orders. The eight beds in the psychiatric ward are used principally by those with a mental illness that also require treatment for a physical illness, and are rarely fully utilised.

Psychiatric nurses and doctors based in MHCs conduct regular home visits to mental health patients. Additionally, patients with serious and enduring mental health problems are accommodated in group homes where psychiatric nurses live in on a rotational basis. Other services include individual and group therapy, psycho social rehabilitation, a GP 'health tutor' and facilitation of membership of associations and social enterprise activities.

Social Cooperatives and Employment Initiatives

In order to better integrate mental health patients into the community, proper employment for mental health patients is promoted via the workplace. Negotiations with unions and local employers have resulted in patients gaining the right to proper union pay rates. The psychiatric services have set up a series of workers' cooperatives which provide regular paid employment through training and ongoing support for mental health patients.

400 people with mental illness are employed on award wages in social cooperatives operating businesses ranging from restaurants, horticulture, gardening, the arts, museums, hotels, etc and 30% of these people are affected by psychosis. A further 200 people are employed in private firms.

There are two types of social cooperatives, Types A and B. Type A cooperatives provide community services such as home care, educational centres, social support, group homes, nursery schools, etc. serving for example, the elderly and those with physical or mental disability, children and adolescents, disadvantaged youth, drug addicts and people affected by AIDS. Type A cooperatives are similar in some respects to Australian NGOs and compete for service delivery contracts.

Type B cooperatives operate as businesses and employ people who encounter systemic limitations or difficulties in achieving acceptable standards in working and social life. These include those with disabilities, psychiatric service users, drug addicts, convicted people, the long-term unemployed, youth at risk and immigrants. Type B cooperatives receive individual tax exemptions for employing disadvantaged people and business tax cuts of 25%. Member-employees are paid normal wages and profits from the business must be re-invested

The indicators of rehabilitation through work include improved socialisation, self-care, family relationships, lower admission rates and less medication. The theory is that work settings should be capable of promoting and widening other fields of interest, develop worker/employer partnerships, job attachment and a sense of identity and belonging. The challenge is to overcome the passive status of being 'assisted' and to involve people as 'subjects' with their own abilities.

Trieste Model New South Wales

Treatment per 100,000 An average of 7 per 100,000 residents are subject to involuntary treatment in Trieste. In the rest of Italy this is 30 per 100,000. The number of people taken to a Mental Health Facility in NSW involuntarily in 2007 is 16,206 out of a population of 7.11 million. This amounts to 228 per 100,000 residents subject to involuntary treatment.

Prevalence of ECT ECT has been Abolished in Trieste. In NSW 5174 people were subject to ECT in 2008.

Suicide rate The suicide rate was reduced by 30% in the 8 years leading up to 2005 in Trieste. The suicide rate was only reduced by 18% in 11 years leading up to 2008 in New South Wales

Number of Homeless people with Mental Health There are no mental health patients who are homeless in the region. The number of people who sleep rough in Sydney is 880, 85% of whom are mentally ill.

Number of mentally ill people in a forensic hospital In Trieste, there is only 1 mentally ill person in a forensic hospital. The Justice Health Forensic Hospital at Malabar is a high security mental health facility providing 135 beds and consisting of five units. The new Forensic Hospital deals primarily with individuals within the criminal justice system who are struggling with mental health issues.

Proposed Social Structure of Cooperative

The focus of the 'Our Backyard' Callan Park project is to empower mental health consumers by providing resources essential to independent and self-sufficient living. However, the Park would be founded on the notion of 'community', with consumers helping each other recover in a safe, accommodating environment. As may be seen in this report and the Trieste model of mental health services , housing cooperatives simultaneously provide residents with support and autonomy, offering a network of social, medical and informational resources.

Housing and housing support was identified by 70.1% of respondents to the Mental Illness Fellowship of Australia (MIFA) "Australians Talk Mental Illness" survey as a key issue. It was estimated that in 2007, 57% of homeless people had a mental disorder within the past 12 months ; however, the prevalence rate may be as high as 75%. With this in mind, the need for a stable housing cooperative has been identified by several organisations. As is seen in the case of L'Abri en Ville where 30 mental health consumers live independently with the support of 60 volunteers, the Callan Park proposal suggests that consumers reside in homes autonomously with only minimal assistance. Such aid would take the form of volunteers who would help with issues of daily management (such as budgeting, shopping, etc) and mental health nurses who would make house calls, enquiring into their general state of well-being. Any further treatment would be determined by consumers and health professionals in a cooperative setting, with consumers having the final say (as is seen in Trieste).

The Callan Park community would hold weekly meetings to discuss and resolve any issues regarding misconduct, renovations and improvements to the community, upcoming events, etc. Such meetings would facilitate community involvement and social interactions, thus preventing the isolation of consumers – an issue they may encounter when living within the general community. Consumers could also freely dictate the terms of their living arrangements in order to promote self-sufficiency and self-efficacy.

As in Trieste, there would be no use of seclusion, restraint or involuntary treatment within the community. However, treatment options would be made available to all residents if they desire additional support, only being administered with the consumer's full consent.

In order to help residents integrate fully into the community, support would be provided by individual specialists in the forms of education services, vocational training and employment opportunities. As with the Mental Illness Fellowship based in Victoria , such staff-assisted programs are tailored to suit both low and high support needs. As is additionally done in Victoria, recreational activities would be organised to encourage the further development of consumer independence. Worker co-operatives may be established where consumers and non-consumers are employed to work jointly across a range of varied business enterprises (eg cafes, restaurants, carpentry).

With stable accommodation and ease of access to mental health services being an instrumental factor in managing psychiatric problems and subsequent coping strategies, the housing cooperative proposed for Callan Park would provide the optimal environment for mental health consumers to live independently while making strides towards recovery.

Recommendations 

Justice Action recommends that the meeting supports the inclusion of this proposal in the final Master Plan and the continuation of Callan Park as an independent living space for consumers as part of a Callan Park Housing Cooperative.

Media Release November 9, 2017

The death of Miriam Merton in the Lismore Hospital mental ward, lying naked in blood and faeces while a nurse casually mopped around her, shocked everyone. The video footage and media had truthfully exposed the culture to the public forcing accountability. Yet no-one proposed that solution or other ways to prevent similar suffering in the Parliamentary Inquiry into her death last week. This failure shows the corruption in mental health, with noses in the Health Department’s trough of over $20 billion.

The Minister for Mental Health Tanya Davies in announcing the Inquiry said on May 12 that ‘she closed her eyes because the vision was too horrible’. The Minister for Health Brad Hazzard said that ‘this poor woman was treated in a way that none of us could ever really have imagined’. Chief Psychiatrist Murray Wright said the staff involved ‘failed on every level’. But none of the leading organisations nor the Health Department itself addressed Miriam’s death and prevention in their presentations, they just wanted more money.

Our team brought lived experience before the Inquiry with Kerry O’Malley, Douglas Holmes and Dr Yolande Lucire giving oral evidence and a submission. Kerry O’Malley shared her trauma of being abused under Community Treatment Orders, forcibly medicated with disabling side effects and callously ignored.

“I have a wide network of family and friends who support me, and I just want the Health Department to leave me alone,” said Kerry O’Malley.

We referred the Committee to the Our Pick Report and Mad in Australia where the abuse of people like Miriam Merton and Kerry O’Malley was researched, their isolation exposed and a solution proposed. We asked the Committee under its charter, to support the use of Rose Cottage in Callan Park for a consumer run organisation, at no cost to the government, to ensure mental health consumers had their own independent base to do the work of Justice Action. These vulnerable people need responsive representation.

Kerry O’Malley – Chemical Restraint in Practice
Report CTO order retained: 22 August 2017

Kerry O’Malley is a 71-year-old woman whose involvement in the mental health system over the last 47 years has revealed the extent to which draconian control and dismissal of individual autonomy is entrenched in the culture of Australia’s mental health system. She has been subjected multiple times to Community Treatment Orders (CTOs) and forcibly medicated with severe physical and social side effects. Working with Justice Action, Kerry was successful in having a CTO removed by the NSW Mental Health Review Tribunal in May 2015. However the Health Department once again imposed a CTO on her in April this year, but the Tribunal refused to revoke it in an August hearing.

This report aims to raise awareness about Kerry’s situation and that of the thousands of others facing forced medication across Australia, and to get support for an appeal to the NSW Supreme Court, to establish respectful standards for vulnerable people. Kerry previously spoke openly about her situation, wants support and has asked for her case to be fought out as resolutely as possible.

In March 2017, Kerry was returning from a six-month holiday in Ireland, but was unable to return home as her tenants have remained there. Disturbed by the situation, she became sleepless and restless. In that state she was apprehended while wandering around and taken to St George hospital for seven weeks, then was moved to Nepean Hospital for three days before being released on a CTO. Whilst in St George Hospital, doctors administered multiple drugs to her, including: Paliperidone, Sodium Valproate, and Lorazepam. These drugs greatly disturbed her and caused severe side effects. A gene test in 2015 revealed that Kerry’s genotype prevented her from metabolising many common psychiatric drugs in strong doses, and that continued treatment with them would be counter-productive. Yet when Kerry and her sister, Margaret, raised these concerns with both St. George and Nepean Hospital staff, doctors did nothing whilst reassuring them the doses were small but failed to address their concerns directly. The indifference of doctors at both facilities is a toxic attitude towards mental health patients that disregards their personal autonomy.

On Kerry’s release from Nepean Hospital into the Penrith Community Health Centre on the 28^th April 2017, she was placed once more on a CTO against her wishes, which covered a six-month period till 27^th October 2017. While CTOs are ostensibly imposed out of concern for the safety of the individual and the community, Kerry has never demonstrated behaviour that may be deemed threatening to herself or to others. Her current treatment order was a result of her being found to be wandering ‘aimlessly’ in public. Moreover, she did not require medication while in Ireland, nor did she make any doctor’s appointments as observed from regular contact with her sister. This shows that given the right circumstances, including family and community support, Kerry is an independent and fully functioning member of society. The true threat lies in her being continually medicated against her will with medication that disturbs and reduces her as a person. Kerry has suffered a number of severe side effects under medication imposed by the CTO including anxiety and depression, which has prevented her from engaging in the community activities that she once enjoyed. In Kerry’s words, the last five months have been “very invasive” and “unhelpful”, which exacerbated the feeling that her life is not her own. No human being should be stripped of their dignity and autonomy in such a way, much less a vulnerable 71-year-old woman.

Hoping to revoke the CTO, Kerry once more sought the assistance of Justice Action. In two hearings on the 8^th and 22^nd August 2017, the NSW Mental Health Tribunal deliberated on new and convincing evidence relating to Kerry’s metabolic genotype with expert testimony by a trusted psychiatrist. Justice Action, acting on behalf of Kerry, argued that her current treatment regime under the CTO was unnecessary and unlikely to bring any long-term improvement, considering the negative short-term impacts on her physical health and social life. It became evident during the hearings that Kerry felt restricted and controlled by the CTO, and did not fully understand her rights.

Following the 8^th August hearing, Justice Action put together an alternative proposal for a Personal Management Plan to allow Kerry a measure of agency and to preserve her dignity. She would receive treatment from her two preferred psychiatrists, with whom she had developed a longstanding and trusting relationship, and would also rely on the support of her family and friends including her sister, church friends, and Justice Action.

When presented with the opportunity to return Kerry’s autonomy and dignity in the second hearing on the 22^nd August 2017, the Tribunal instead deferred control to the Health Department. Unbelievably, it did not find the CTO to be overly invasive, and declared it had taken Kerry’s needs into account despite her vocal opposition. Furthermore, the Tribunal’s dismissal of Kerry’s alternative Personal Management Plan fails to substantiate their claim of s 53(3)(c) of the Mental Health Act 2007 (NSW), which states that CTO’s can be applied when there is a ‘previous history of refusing to accept appropriate treatment’. Kerry has already agreed to follow supervised treatment with her nominated health professionals. In the decision, Kerry was unquestionably deprived of her right to give ‘free and informed consent’ to the CTO, as stated under Article 25(d) of the UN Convention on the Rights of the Persons with Disabilities. Justice Action seeks to appeal the decision on the basis that the tribunal has not properly considered the possibility of a less restrictive alternative to the CTO.

Kerry has sought the assistance of Justice Action in order to seek the revocation of the Community Treatment Order, which permits her subjection to such a process. The Community Treatment Order, administered by NSW Health, undermines Kerry’s individual agency as it mandates medical intervention based on their challenged diagnosis of schizoaffective disorder. Kerry’s lack of participation in her own medical treatment has had negative consequences for her quality of life and diminishes her ability to have her opinions heard. Clearly, despite the negative consequences of a CTO on Kerry’s life, the Mental Health Review Tribunal dismissed an application to revoke the CTO on the 22^nd of August 2017.

This report thus aims to lay the basis for a challenge to the NSW Supreme Court.

CTO Legal Basis

As held in Rogers v Whitaker (1992) 175 CLR 479 at 489, a prerequisite to the medical treatment of an individual is the need for the individual’s consent to that treatment. Forced medication is exceptional. Subject to procedural safeguards, it is permissible when justified by necessities recognised by the law: Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 323.

It can be agreed that the application of a CTO and forceful medicating practices, in any circumstance, is a violation of an individual’s most basic human rights, which also fails to uphold specific sections of the Mental Health Act 2007 (NSW).  As reaffirmed by the UN within the Convention on the Rights of a Person with Disabilities, which is founded on the basis of ‘inherent dignity, and individual autonomy, including the freedom to make one’s own choices’, the CTO stands to strip these rights from Kerry.

The requirement for the least restrictive method in s 53(3)(a) contradicts the CTO, which serves to impose control upon Kerry’s life, even when she’s happy to agree on voluntary treatment alternatives. The inhumane conditions imposed by the CTO further restrict her full and effective participation and inclusion within society. Furthermore, Article 25 specifically requires ‘health professionals to provide the same quality to persons with disabilities as to others, including on the basis of free and informed consent’. In this sense, her right to equality has clearly been ignored.

Additionally, Kerry’s treatment under the CTO exacerbates her previous negative experiences within the health services, as all health professionals consulted in the treatment remained focused on her ability to relapse. This argument is supported by Dr. Suman’s admission at the Tribunal, who made clear that Kerry’s psychiatric history would indicate a relapse would occur three to six months after being taken off the CTO. This value judgment is based on a probability that Kerry’s medication is currently effective in maintaining her condition, thus taking away the medication undermines her ability to be ‘successful’. However, Kerry’s ability to function and maintain quality of life under her current medical regime is impaired and that is an important consideration that has been neglected.

Side Effects

A 2015 pharmacological review and a 2017 independent home medication review noted issues with Kerry’s ability to correctly metabolise her current medication, leading to severe side effects. Side effects of Kerry’s current medical regime include headaches, memory impairment, dizziness, feeling physically ill, disturbed thoughts, sleeplessness, visual problems, drowsiness, anxiety and severe depression. Her continued suffering of these side effects indicates the current medication regime imposed on her by the CTO is inappropriate and potentially lethal. Not only has her physical condition significantly deteriorated, but her social engagement and support has diminished greatly due to the imposition of the CTO. Kerry regularly enjoyed community and church-based activities that helped improve her mental state, including teaching scripture in a local school, Irish dancing classes, sewing groups and meeting friends for coffee in the mornings.

The CTO, however, cut her off from these activities; made it difficult to get out of bed, and caused constant feelings of anxiety and depression. Her involvement with authorities over the years has strained family relationships, where police had come to her house multiple times, including one occasion where they broke the lock of her front door and left her with a large price to pay for the replacement. Kerry feels that her distress was increased after multiple visits from police and ambulances to her house leading to her being alienated from her surrounding community, and leaving her embarrassed due to being labelled as ‘mentally ill’. As Kerry is unable to drive when medicated and has limited access to public transport, she has experienced restrictions of travel for ordinary day-to-day tasks such as shopping for groceries. In short, the CTO deprives her of the social network that could otherwise expose her to opportunities to improve her mental state.

Meaning of Less Restrictive Care

There is no definition in the NSW legislation of the meaning of “care of a less restrictive kind”. As Beazley P held in Attorney General for the State of New South Wales v XY [2014] NSWCA 466, the context and purpose of the Mental Health Act 2007 (NSW) indicates that “care of a less restrictive kind” ought not to be confined so as related only to the extent and type of leave which a patient may be granted. The objects of Part 5 of the Act include the provision for the care, treatment and control of a patient. The principles of care and treatment of persons with a mental illness include that a person should receive treatment in “the least restrictive environment enabling the care and treatment to be effectively given” [s 68(a)].

Significantly, as Beazley P highlighted, the words “care”, “treatment” and “control” are all distinct objects. The word “care” as used in s 43 encompasses a person’s overall care, including care in the sense of physical, emotional and spiritual wellbeing. It includes the provision of what is necessary for health, welfare, maintenance and protection. That is in addition to the physical controls that are placed on a person, including the extent of leave that a person is given and whether that leave is restricted and unrestricted.

Further, as Brereton J stated in S v South Eastern Sydney & Illawarra Area Health Service and Anor [2010] NSWSC 178, the legal question to be satisfied is if “no other care of a less restrictive kind consistent with safe and effective care is appropriate and reasonably available”, and that the patient “would benefit from the order as the least restrictive alternative consistent with safe and effective care.”

Both cases indicate that coercive treatment is unacceptable if the person wants effective support in another form. In Kerry’s case, she wants a less restrictive version of a treatment plan that takes into account her genome types, side effects, and personal well being to be consistent with safe and effective care.

TRIBUNAL DECISION

The Tribunal dismissed the application for the revocation of the CTO and said it had:

• Taken into account the needs of Kerry Anne O’Malley
• Considered the past history of non-compliance with her medication resulting in readmission to hospital
• Regarded with uncertainty the alternative treatment plan being presented by JA
• Given credit to JA for working towards a plan, though it missed an “important ingredient” as a treatment plan and was rather a supporting plan
• Clear evidence that the people looking after Kerry at the moment (her Treating Team) had shown to the Tribunal they are listening to Kerry, and prepared to modify programs, and to meet her needs within the bounds of a CTO
• Decided that the current plan is not overly invasive. It sets out obligations for Kerry and her current team.

Grounds of Appeal

The ground for an appeal available to Kerry is on the basis of s 67(1)(b); ‘on any question on law or fact arising from the order or its making.’ This would entail proving that the Tribunal misapplied the law or did not duly perform the task entrusted to it by legislation. We are arguing that this is because the tribunal did not properly consider s 53(3)(a) of the Act;

“That no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care.”

The Tribunal ignored that the proposal Justice Action had developed for Kerry should have constituted a less restrictive treatment option to a CTO. In determining whether a CTO is the most appropriate option available, the court may take into account legislative principles for care and treatment under s 68 of the Act. These principles include taking reasonable steps to ensure the person is able to be involved in work and the community wherever possible; be provided with appropriate information about their treatment and any alternatives; be able to be involved in their treatment and taking as many steps as reasonable to obtain the person’s consent to treatment. Kerry’s physical and social side effects (refer to side effects listed above) of the medication forced on her from the CTO severely impacted various aspects of her daily life. Her subsequent complaints and objections to treatment went unaddressed for a significant period of time. Health Services have not actively taken reasonable steps to ensure she was involved and as willing as possible in her treatment.

Justice Action had prepared an alternative personal management plan that satisfies s 53(3)(a) and which was not properly considered. It involves medication that would be prescribed by Dr Lucire, that takes into account her genome profile, psychological therapy conducted by Dr Chaturvedi, a social support system made up of Kerry’s sister Margaret and her local community, and an advance directive clearly detailing Kerry’s own treatment directives. Thus the CTO should be revoked, as there are treatment options available of a less restrictive kind that are consistent with safe and effective care. This plan would benefit Kerry by taking into account her consent alongside her physiological, psychological, and social needs, whilst reducing the distress she experiences from the current CTO.